In November, in a welcome announcement and demonstration of non-partisan leadership, Jody Wilson-Raybould, minister of justice and attorney general of Canada, announced the government’s support for private member’s Bill C-262, which had been championed by NDP member of Parliament Romeo Saganash.

Bill C-262 is a short, straightforward piece of legislation that confirms the application of United Nations Declaration on the Rights of Indigenous Peoples — something the government committed to in 2015 — and establishes a mechanism for aligning federal legislation with the standards in UNDRIP. Importantly, Wilson-Raybould was also clear that Bill C-262 was only a starting point and that other legislative change will be needed to affirm the recognition of Indigenous rights.

Bill C-262 directly responds to two of the calls to action of the Truth and Reconciliation Commission:

“43. We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

“44. We call upon the government of Canada to develop a national action plan, strategies and other concrete measures to achieve the goals of the United Nations Declaration on the Rights of Indigenous Peoples.”

The announcement by Wilson-Raybould was appropriately met with praise and optimism by Indigenous peoples, human-rights experts, and civil-society leaders and organizations. Indeed, to those of us personally and intimately engaged in the struggle for justice for Indigenous peoples, one can sense that while the work remains fierce and intense, there is momentum building toward potential breakthroughs.

In recent weeks, however, a few voices opposed to Bill C-262 have begun to trickle out. To those well-versed in the struggle for justice for Indigenous peoples, these opposition themes are well-known. The goal — quite clearly — is to instil fear in Canadians.

For example, one argument that is raised is that Bill C-262, and implementing UNDRIP, will upend or distort the jurisprudence that the Supreme Court of Canada has developed over the past three decades in interpreting Section 35 of the Constitution.

This is laughable. Some of the experts raising this point are people who dedicated much of their professional lives to fighting against the development of the application of the Supreme Court’s framework — whether as lawyers for government or industry in the courts or as senior government officials. To see them now treating the Supreme Court’s jurisprudence as containing a sacredness that must remain untouched has an element of hypocrisy.

More importantly, however, fears about how UNDRIP might relate to Section 35 court decisions ignores the history of why and how the courts got so involved in Indigenous-rights matters in the first place.

Section 35 of the Constitution recognizes and affirms Indigenous rights. However, instead of acting on this recognition after the patriation of our Constitution in 1982, governments maintained the fiction that Indigenous rights do not exist, they need not be recognized and the colonial treatment of Indigenous peoples could carry on as it always had.

That denial resulted in the courts having to be used by generations of Indigenous peoples to painstakingly and incrementally build meaning into Section 35. The cost of this for Indigenous peoples and all Canadians has been disastrous.

While Indigenous peoples have won massive court victories, this pernicious denial has delayed justice, prolonged impoverishment and marginalization, created massive uncertainty for lands and resources, weakened the investment climate, and entrenched even greater conflict and mistrust.

Let’s not mince words. This denial has meant that Indigenous children would remain treated as inferior to other children: with less opportunity; less access to education or basic social services; more often taken away from their families and communities; and more exposed to racism and prejudice.

Ever since Section 35 was enacted, governments should have been taking legislative and policy steps with Indigenous peoples to implement the recognition of those rights. This has never happened.

Indeed, only one government has ever made a direct attempt to do this — the B.C. government in 2008-2009 — which proposed along with First Nations leaders a Recognition and Reconciliation Act. That act failed, at least partially because of fear created by experts. Unsurprisingly, some of the voices raising red flags about legislation now are the same ones that spoke out then.

The world has changed a lot in a decade. Canadians are far more aware of our history of colonialism, and the required work of reconciliation. I am hopeful that in 2018, Canadians will not succumb to voices that are intent on looking backward and maintaining what has been. The reality of what has been for Indigenous peoples is nothing to be preserved.

UNDRIP is important because it is a comprehensive framework of recognition and reconciliation — a paradigm we have no domestic tradition of in Canada. Our future must be built on putting in place new foundations — including in legislation and policy. Bill C-262 starts that process and builds that new path, and we all should support it.

Douglas White is a councillor and chief negotiator for the Snuneymuxw First Nation.

Parliamentarians should embrace Bill C-262 as a crucial step toward shared goal of reconciliation; repudiate fear mongering and misrepresentations of UN Declaration on the Rights of Indigenous Peoples

The Coalition for the Human Rights of Indigenous PeoplesOpen Letter to All Members of Parliament

The Truth and Reconciliation Commission urged all governments to implement the United Nations Declaration on the Rights of Indigenous Peoples as ‘the framework for reconciliation’ in Canada. Members of Parliament have a crucial opportunity to contribute to reconciliation by supporting Bill C-262 when it comes to a vote at second reading this month.

Bill C-262 provides a framework for the federal government to collaborate with First Nations, Inuit and the Métis Nation in the important work of ensuring that Canada’s laws, policies and operational practices live up to the human rights commitments affirmed in the UN Declaration. As a legislative framework that integrates regular reporting to Parliament, Bill C-262 provides the means to hold this and future governments accountable for living up to the commitments that they have made to honour and respect the rights of Indigenous peoples.

Our Nations, governments and organizations welcome the fact that this private members bill now has the support of both the Liberals and NDP. In particular, we want to commend all those members of the public who have taken the time to learn about the Declaration and expressed their support for adoption of Bill C-262. We are looking forward to a fulsome debate over the Bill in the coming weeks and strongly urge all Parliamentarians to engage with Indigenous peoples in a serious conversation about how this Bill can be further strengthened before its eventual adoption.

In the midst of this hopeful moment, we note with concern that as momentum has built around Bill C-262, there has also been a blatant backlash in part of the media. A handful of right of center think tanks, retired civil servants and others pundits have been given a platform to grossly misrepresent the Declaration and promote a divisive, even racist response to the inherent rights of Indigenous peoples that is the very antithesis of reconciliation. One of the most malicious of these articles – appearing not in an obscure blog but in a national newspaper – went so far as to claim that the Declaration should be rejected for ‘giving Aboriginals rights nobody else has.’

In the face of this fear-mongering and race-baiting, it is important to be honest and accurate about the relationship between UN Declaration and Canadian law. The Supreme Court of Canada has long used international human rights standards to interpret laws passed by Parliament. Furthermore, it is an established principle of Canadian law that interpretations consistent with Canada’s international human rights obligations are always to be preferred to those that would violate these commitments. There is no principled reason to make an exception for the one universal human rights instrument to specifically address the rights of Indigenous peoples.

The Canadian Constitution is a living legal instrument that evolves through its interpretation. International human rights law including UN Declaration is already part of this ongoing evolution. Canadian courts and the Canadian Human Rights Tribunal are already using the UN Declaration to help understand and apply the constitutional commitment to uphold the inherent rights of Indigenous peoples. The clock cannot be turned back.

Those stoking fears about the Declaration inevitably fasten on those provisions requiring that decisions affecting the lives and well-being of Indigenous peoples be made only with Indigenous peoples’ free, prior and informed consent (FPIC). It is important to understand that these provisions in the Declaration are wholly consistent with a much wider body of international law, including how expert bodies have long interpreted and applied core international human rights Conventions such the International Covenant on Civil and Political Rights and the UN Convention on the Elimination of all forms of Racial Discrimination. In other words, even without the Declaration, governments and courts would be called upon to respect and implement the standard of free, prior and informed consent.

Crucially, the concept of FPIC is not foreign to Canadian law and legal history. Treaties would have no legitimacy without Indigenous consent. The Supreme Court of Canada in Delgamuukw (1997) and Haida Nation (2004) stated that Indigenous consent may be required on serious issues to prevent the Crown running roughshod over Indigenous rights and interests. In the Tsilhqot’in decision (2014) the Supreme Court defined Indigenous land title as including the requirement that decisions be made with Indigenous consent. Legitimate debate about implications of adhering to the UN Declaration cannot ignore these facts.

Furthermore, the logic behind the standard of FPIC should not be controversial for anyone genuinely committed to equality and reconciliation. Indigenous peoples or nations have the right of self-determination, consistent with the international covenants that Canada has ratified. This requires recognizing that Indigenous nations have the authority to make their own decisions. To acknowledge the grave harms that have been done to Indigenous peoples throughout our history and strive to undo and prevent such harms – as Canada committed to do when it embraced the TRC’s Calls to Action – requires an end to the federal government arbitrarily imposing its will on Indigenous peoples.

No one can deny that profound changes are urgently needed in how the federal government relates to and treats First Nations, Inuit and the Métis Nation. The Truth and Reconciliation Commission clearly told us that reconciliation requires hard work by all sectors of society. Adoption of Bill C-262 is part of this necessary work. Our governments and organizations strongly believe that the collaborative, non-adversarial approach to law reform set out in Bill C-262 is in the best interest of all Canadians. We strongly encourage all Members of Parliament to approach the upcoming debate around Bill C-262 from this principled perspective.

BACKGROUND

The UN Declaration was the subject of one of the most extensive standard setting processes ever undertaken in the international human rights system. The collaboration between Canadian government representatives and Indigenous peoples during the final years of negotiation was a key factor in developing a text that could attain broad, global support. Today, the Declaration stands as a global human rights instrument, reaffirmed 8 times by the UN General Assembly by consensus.

Bill C-262 has five key elements:

Bill C-262 sets out the principles that must guide implementation of the Declaration, including repudiation of colonialism.Bill C-262 provides clear public affirmation that the standards set out in the UN Declaration have “application in Canadian law.”Bill C-262 requires a collaborative process for the review of federal legislation to ensure consistency with the minimum standards set out in the UN Declaration.Bill C-262 requires the federal government to work with Indigenous peoples to develop a national action plan to implement the UN Declaration.Bill C-262 provides transparency and accountability by requiring annual reporting to Parliament on progress made toward implementation of the Declaration.